Wednesday, December 21, 2011

LAWYERSCHILE>: Free Speech and Occupy Wall Street

Free Speech and Occupy Wall Street

The Occupy Wall Street protesters were allowed to remain in New York's Zuccotti Park for two months, against the will of its private owners. They were clearly trespassers, indeed, much worse than garden variety trespassers, who almost always quickly leave. They were there prepared to stay indefinitely. In effect, they were literally attempting to steal the park from its lawful owners.

Nevertheless, they were allowed to remain, in the belief that to eject them would somehow constitute a violation of their freedom of speech. They had seized the park in order to denounce capitalism. Ejecting them, would have ended their use of the park for that purpose and thus, according to virtually everyone with a public voice, from New York's Mayor to the lowliest media reporter, would have violated their freedom of speech.

A major lesson to be learned from the occupation is that hardly anyone nowadays understands the meaning of freedom of speech. Contrary to the prevailing view, freedom of speech is not the ability to say anything, anywhere, at any time. Actual freedom of speech is consistent with respect for property rights. It presupposes that the speaker has the consent of the owners of any property he uses in speaking, such as the land, sound system, or lecture hall or radio or television studio that he uses.

Had the owners of Zuccotti Park invited the protesters to camp on their land and propound their ideas, and then the police had ejected them, the protesters' freedom of speech would in fact have been violated. But that was not the case. The only actual violation of freedom present was the protesters' violation of the freedom of the owners of Zuccotti park to use their property for their own purposes. The protesters did not violate specifically the freedom of speech of the owners, but they certainly did violate their freedom in general with respect to the use of Zuccotti Park. Had the owners wanted to invite some other person or group for the purpose of speaking, then the protesters would have violated the freedom of speech specifically, by means of their presence and their activities.

Nevertheless, by the logic of the prevailing view of freedom of speech, protesters in the future will be able to storm into lecture halls and/or seize radio and television stations in order to deliver their message and then claim that their freedom of speech is violated when the police come to eject them, even though the police in such cases would in fact be acting precisely in order to uphold the freedom of speech. Indeed, since the days of the so-called Free Speech Movement at Berkeley, back in the 1960s, disruptions of speeches delivered by invited guests have occurred repeatedly on college campuses, in the name of the alleged freedom of speech of the disrupters. No attention has been paid to the actual violation of the freedom of speech of the invited speakers.

The prevailing view of freedom of speech is a major threat to freedom of speech. Not only does it provide justification for actual violations of freedom of speech of the kinds just mentioned, but it also makes freedom of speech appear to be a fundamental enemy of rational communication. Speakers cannot address audiences, professors cannot lecture to students if disrupters are permitted to drown them out and then hide behind the claim that they do so in the name of freedom of speech. If the prevailing view of freedom of speech were correct, the ability of speakers to speak and professors to lecture would require accepting the principle of the need to violate freedom of speech.

Of course, the prevailing view is totally incorrect. Actual freedom of speech, based on respect for property owners' rights to use their own property as they see fit, is the guarantor of rational communication. If the property rights of the owners of parks, lecture halls, and radio and television stations are respected, the disrupters will be ejected and very soon will no longer even bother to appear. Rational communication will then proceed without incident.

Upholding freedom of speech and rational communication requires a policy of no tolerance for the occupation of property against the will of its owners. Any such occupation is in violation of the owners' freedom, including their freedom of speech. Protester-occupiers are enemies of freedom, including, above all, freedom of speech.